Poole v. Osborn

June 15, 2007

NATHAN POOLE, PLAINTIFF,v.CHARLEY J. OSBORN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM ORDER

Two of the defendants in this personal injury action brought under the auspices of diversity of citizenship--Charley Osborn and Osborn & Son Trucking Company, Inc. (collectively "Osborns")--have filed their Answer and an affirmative defense ("AD") to the Complaint brought against them and their co-defendants by Nathan Poole ("Poole"). This memorandum order is issued sua sponte to require Osborns' counsel to cure some flaws in that responsive pleading.

To begin with, Jurisdiction ¶¶4 through 6 are at odds with the disclaimer requirements of the second sentence of Fed. R. Civ. P. ("Rule") 8(b)--see App. ¶1 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001). Those paragraphs are stricken, but with leave granted to replead in proper form.

Next, Osborns' counsel impermissibly challenges Count I ¶3 and Count II ¶3 as "a matter of law and not a pleading"--see App.

¶2 to State Farm. Those paragraphs are also stricken, again with leave granted to replead.

Finally, AD ¶3, to the extent that it asserts that Poole was the sole cause of his alleged injuries, contradicts Poole's allegations and is therefore flawed in Rule 8(c) terms--see App.

¶5 to State Farm. That portion of Osborns' assertion is stricken, this time without leave to replead.

Osborns' counsel are granted until June 25, 2007 to file the appropriate amendments to the stricken paragraphs, failing which the corresponding allegations of Poole's Complaint will be deemed to have been admitted. No charge is to be made to Osborns by their counsel for the added work and expense incurred in correcting counsel's errors. Osborns' counsel are ordered to apprise their clients to that effect by letter, with a copy to be transmitted to this Court's chambers as an informational matter (not for filing).

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.